Clarke, Bruce; Kapnoullas, Steve --- "When is a Signed Document Contractual? - Taking the 'Fun' out of the 'Funfair'" [2001] QUTLawJJl 4; (2001) 1(1) Queensland University of Technology Law and Justice Journal 39
[*] Bruce Clarke Deputy Head of
Studies, Swinburne University of Technology, LLM, BEc, GradDipMktg (Mon);
Stephen Kapnoullas Senior
Lecturer in Law, Swinburne University of Technology,
LLM, BA, DipEd (Melb).
[1]
L’Estrange v Graucob [1934] 2 KB 394 at 403 per Scrutton
LJ.
[2] Nevertheless, the law
recognises some exceptions including non est factum, misrepresentation
and, in limited circumstances, mistake. In addition, the expanded doctrine of
‘unconscionability’
has also emerged as an exception to the rule in
L’Estrange v Graucob by recognising the undesirability of enforcing
a contract (even if it has been signed) in circumstances where to do so would be
manifestly
unfair: see Commercial Bank of Australia Ltd. v Amadio [1983] HCA 14; (1983)
151 CLR 447. This issue is discussed briefly later in this article.
[3] A Mason & S J Gageler in
‘The Contract’ in P D Finn, Essays on Contract,
3rd edn Law Book Co 1987 at
1.
[4] See Life Insurance Co.
of Australia Ltd. v Phillips [1925] HCA 18; (1925) 36 CLR
60.
[5] [1930] 1 KB
41.
[6] In George Mitchell
(Chesterhall) Ltd v Finney Lock Seeds Ltd [1982] EWCA Civ 5; (1983) 1 QB 284 at
296-7.
[7] Supra n 3 at
11-12.
[8] S Graw, An
Introduction to the Law of Contract, 3rd edn Law Book Co 1998 at
181.
[9] [1998] 4 VR
661.
[10] Ibid at
662.
[11] Le Mans Grand Prix
Circuits Pty Ltd v Iliadis, supra n 9 at
663.
[12] The full text of the
document is set out at 669 of the court’s
judgment.
[13] Supra n
11.
[14] Ibid at
664.
[15] [1986] HCA 82; (1986) 161 CLR
500.
[16] Reference is also made
by his Honour, at 666, to Causer v Browne [1952] VR
1.
[17] D W Greig & J L R
Davis, The Law of Contract, Law Book Co Sydney 1987 at
605.
[18] Ibid at
611.
[19] J R Spencer,
‘Signature, Consent and the Rule in L’Estrange v
Graucob’ [1973] CLJ
104.
[20] Ibid at
105.
[21] Supra n 11 at
667.
[22]
Ibid.
[23] Ibid
at 668.
[24]
Ibid.
[25] Ibid
at 670.
[26] Ibid at
671.
[27]
Ibid.
[28]
Ibid.
[29] [1971] VicRp 92; [1971] VR
749.
[30] [1986] WAR
131.
[31] Supra n 11 at
672.
[32] Supra n 3 at
133.
[33] [1983] HCA 5; (1983) 151 CLR
422.
[34] [1988] HCA 32; (1988) 165 CLR 197 at
228.
[35] [1989] QB
433.
[36] Supra n 11 at
674.
[37] Ibid at
676.
[38] Ibid at
667.
[39] [1975] HCA 55; (1975) 133 CLR 125 at
142.
[40] (1978) 83 DLR (3d)
400.
[41] Ibid at
408-9.
[42] [1951] 1 KB
805.
[43] (1986) ATPR
40-693.
[44] [1992] FCA 206; (1992) ATPR
41-171.
[45] In this context a
‘consumer’ is a person who acquires services at a price which does
not exceed $40,000, or if the
price exceeds $40,000 the services are of a kind
which are ordinarily acquired for personal, domestic or household use or
consumption:
s 4B(1)(b).
[46]
Supra n 2.
[47] Section
51AB(5).
[48] (1991) ATPR
41-104.
[49] Ibid at
52,622.
[50] The same thing
could be said about the plaintiff in the George Collings case, which is
the reason why the decision in that case is open to some criticism.
[51] Supra n 19 at 116. Although Tadgell JA refers to Spencer’s criticism it is unfortunate that his Honour does not give any clear indication as to whether he endorsed the authors’ view. Tadgell JA felt there was no need to do so because of his ultimate finding that there was no contractual relationship between the parties.